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Bar Review > Torts > Flashcards

Torts Flashcards

1
Q

Voluntary act

A

Defendant must direct muscular movement that causes harm to the plaintiff

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2
Q

Intent

A

Defendant acted with purpose to cause harm to plaintiff; OR

Defendant acts with knowledge to a degree of substantial certainty that her conduct will cause harm to plaintiff

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3
Q

Transferred Intent

A

Personal Injury Intentional Torts:
Applies to Batter, Assault, and False Imprisonment. NOT Intentional Infliction of Emotional Distress

Property Intentional Torts:
Trespass to chattel

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4
Q

Battery

A

1) Harmful or offensive bodily contact
2) Without Consent
3) Acts with intent to cause either contact or apprehension of contact
4) Causation
5) Damages

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5
Q

Harmful or Offensive Contact

A

One that causes injury, physical impairment, pain, or illness; OR
Contact that a person of ordinary sensibilities would not consent to

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6
Q

True or false. A plaintiff need not be aware of harmful or offensive bodily contact for defendant to be liable for battery

A

True

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7
Q

Plaintiff’s Person (w/r/t battery)

A

Either body of plaintiff or with something that is closely connected to the plaintiff (clothing, purse, wallet, plate she is carrying)

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8
Q

Battery: Causation

A

Defendant’s conduct must result in harmful or offensive conduct, either directly or indirectly

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9
Q

Battery: Damages

A

Does not need to prove actual harm–can recover nominal damages.

In cases involving malice, can recover punitive damages.

Actual damages.

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10
Q

Assault

A

1) reasonable apprehension
2) of imminent harmful or offensive bodily contact
3) defendant intends to cause either contact or apprehension of contact

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11
Q

True or false. A plaintiff need not be aware of imminent harmful or offensive bodily contact for defendant to be liable for assault

A

False

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12
Q

Reasonable apprehension of bodily harm or offensive contact

A

Defendant must possess the apparent ability to cause the harmful or offensive bodily contact

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13
Q

Mere words

A

generally mere words do not constitute assault, unless they can create reasonable apprehension of imminent bodily harm

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14
Q

Assault: intent

A

must intend either to cause apprehension or cause actual harm. Does NOT require ill motive or malice.

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15
Q

Assault: Damages

A

Actual damages NOT required

Can recover nominal damages and punitive damages.

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16
Q

IIED

A

1) extreme or outrageous conduct
2) with intent or recklessness
3) resulting in severe emotional distress

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17
Q

Conduct is more likely to be considered extreme or outrageous IF

A

Defendant is in position of authority, OR

Plaintiff is member of group with known heightened sensitivity

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18
Q

IIED for acts directed at third parties

A

Transferred intent does not apply. Some courts allow w/r/t family members.

Sometimes non family members can bring IIED claim, but only if experiencing bodily injury

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19
Q

Recklessness

A

Conduct that poses a substantial probability that it will cause specified harm.

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20
Q

IIED: Damages

A

Not required to prove physical injury.

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21
Q

IIED: Hypersensitive plaintiff

A

No liability unless defendant KNOWS of plaintiff’s sensitivity.

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22
Q

False Imprisonment

A

1) confining another within boundaries fixed by actor
2) with intent, AND
3) victim is conscious of confinement or is harmed by it

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23
Q

Confined within Boundaries

A

Plaintiff’s freedom of movement in all directions must be limited.

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24
Q

False Imprisonment: Methods of Confinement

A 
Physical barriers
Force
Direct or indirect threats to plaintiff, 3rd party, or plaintiff's property
Invalid use of legal authority
Duress
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25
Q

Shopkeeper’s privilege

A

If an employee of a retail store has reasonable grounds to suspect someone of shoplifting, she may detain the suspected shoplifter for a reasonable period of time and in a reasonable manner to investigate and call police.

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26
Q

Defenses to intentional torts involving personal injury

A
  • Express Consent
  • Implied Consent
  • Self-Defense
  • Defense of others
  • Defense of property
  • Recapture of Chattels
  • Parental Discipline
  • Arrest
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27
Q

Express consent

A

Plaintiff manifests a willingness to submit to defendant’s conduct by words or actions.

Defendant’s conduct may not exceed the scope of the plaintiff’s consent.

28
Q

Intentional tort defense: consent by mistake

A

Valid unless defendant cause mistake or knew of it and took advantage of it.

29
Q

Intentional tort defense: consent by fraud

A

Invalid if induced by fraud and goes to essential matter.

Valid if induced by fraud and goes to collateral matter.

30
Q

Intentional tort defense: consent by duress

A

Not valid, but threat must be of present action, not future action.

31
Q

Implied consent

A

Consent is implied when plaintiff is silent or otherwise unresponsive in a situation in which a reasonable person would object to the defendant’s actions.

32
Q

Implied Consent: Emergency situtations

A

Immediate action is required to save life or health of patient who is incapable of consenting to treatment.

33
Q

Implied Consent: Athletic Contests

A

Consent may be implied by custom or usage, such as participation in contact sport.

Injured player can only recover when there has been a reckless disregard of a player’s safety.

34
Q

Implied Consent: Street fighting

A

Majority of courts hold that consent to street fighting is NOT a defense because a person cannot consent to a criminal act

Second Restatement and minority of courts hold that consent in such situations is valid defense.

35
Q

Consent: Capacity

A

Plaintiff must be legally competent to give consent.

NOT valid in cases of minority, mental incapacity, intoxication

36
Q

Self Defense

A

A person who uses reasonable force to defend against offensive contact or bodily harm that he reasonably believes is about to be inflicted upon him has an affirmative defense of self-defense

37
Q

Self-Defense: Deadly force

A

Defendant can use deadly force only if he has a reasonable belief that such force is necessary to prevent SERIOUS BODILY HARM or DEATH

38
Q

Self-Defense: Obligation to retreat

A
  • Majority: no obligation to retreat
  • Trend towards duty to retreat before using deadly force
  • No duty to retreat when in own home
  • Restatement (Second): duty to retreat before using defensive deadly force if she can do so safely
  • Most recent trend: “stand your ground” statutes.
39
Q

Initial Aggressor

A

Not entitled to claim of self-defense unless other party responded to non-deadly force with deadly force

40
Q

Self-Defense: Injury to 3rd Party

A

Actor not liable for injuries to bystanders that occur while exercising right to self-defense

41
Q

Defense of others

A

Defendant is justified in using reasonable force in defense of others upon reasonable belief that the defended party would be entitled to use self-defense

42
Q

Defense of Property

A

A person may use reasonable force to defend his property if he REASONABLY BELIEVES it is necessary to prevent TORTIOUS HARM to property.

Includes intrusion upon property, unless visitor was acting under necessity.

43
Q

Defense of Property: Deadly force

A

May not be used in defense of property.

44
Q

Recapture of Chattels

A

Reasonable force may be used to reclaim personal property that has been wrongfully taken by another.

If original taking was lawful, recapture must be peaceful.

45
Q

Repossession of Land

A

Common Law - Owner can use reasonable force to regain possession of land from one who has wrongfully taken it

Modern Trend - statutes provide procedures for recovery of real property

46
Q

Parental Discipline

A

Can use reasonable force or impose reasonable confinement to discipline own children.

Educator has same privilege unless parent places restrictions on privilege.

47
Q

Arrest by private citizen

A

Private citizen privileged to use force to make arrest in case of a FELONY if:

1) Felony has in fact been committed, AND
2) Private citizen has reasonable grounds to suspect that person arrested has committed the felony

48
Q

Arrest by Police Officer

A

Police officer must reasonably believe that

1) felony has been committed; AND
2) person arrested has committed felony

49
Q

Defense to Intentional Tort: Arrest for Misdemeanor

A

Arrest of misdemeanor privileged only if:

1) for breach of peace.
2) that is being committed or reasonably appears to be committed,
3) in presence of arresting party

50
Q

Trespass to Chattels

A

1) intentionally
2) dispossess plaintiff of chattel; OR
3) intermeddles with chattel in possession of plaintiff AND the use or intermeddling damages chattel

51
Q

Trespass to Chattel: Intent

A

Only intent to do interfering act is necessary. Defendant need not intend to interfere with another’s possession of tangible property.

52
Q

Trespass to Chattel: Damages

A
  • Diminution of value or for cost of repair

- Loss of use (if dispossessed–must show actual damages)

53
Q

Conversion

A

1) intentionally
2a) deprives plaintiff of possession of her chattel; OR
2b) interferes with chattel in manner so serious that it deprives plaintiff of the use of the chattel

54
Q

Conversion: damages

A

Defendant must pay plaintiff chattel’s full value at time of conversion
OR
action for replevin to force return of chattel

55
Q

Conversion: lawful acquisition

A

If original acquisition of chattel is lawful, plaintiff must demand return of chattel before suing for conversion

56
Q

Conversion: Accidental damage

A

If defendant had permission to use property, accidental damage to property is not conversion.

57
Q

Interference

A

Occurs when defendant exercises dominion or control over plaintiff’s chattel
(wrongful acquisition, substantial change, severe damage, misuse)

58
Q

Trespass to Land

A

1) intentionally
2) causes physical invasion
3) of land of another

59
Q

Trespass to Land: Intent

A

Defendant need only have intent to enter land or to cause physical invasion, not the intent to commit wrongful trespass

Defendant need not know land belongs to another

60
Q

Trespass to Land: Physical invasion

A

Defendant need not personally enter plaintiff’s property.

Includes failure to leave property after lawful right of entry has expired.

Occurs when defendant exceeds scope of plaintiff’s consent or privilege

61
Q

Trespass to land: damages

A

No need to prove actual damages

62
Q

Private Necessity as Defense to Trespass

A

Defendant who acts to prevent threatened injury from source of nature or other independent cause not connected with defendant.

Includes saving:

  • own life
  • more valuable property

Valid defense to:
Trespass to land
Trespass to chattel
Conversion

63
Q

Self Help

A

Property owner cannot use self-help to exclude defendant trespasser acting out of necessity

64
Q

Necessity: Damages

A

Property owner can only recover actual damages

65
Q

Public Necessity as Defense to Trespass

A

Private property may be intruded upon or destroyed when necessary to protect a large number of people from public calamities.

Privilege is absolute: as long as defendant acts reasonably, not liable for any damage…even if intrusion is not necessary, so long as he reasonably believe that the necessity existed

66
Q

Private Nuisance

A

1) thing or activity
2) that substantially and unreasonably
3) interferes with use or enjoyment
4) of another’s land

Bar Review (2 decks)

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